Publication details

Romanian version of the rule of law crisis comes to the ECJ: The AFJR case is not just about the Cooperation and Verification Mechanism

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Year of publication 2022
Type Article in Periodical
Magazine / Source Common Market Law Review
MU Faculty or unit

Faculty of Law

Web Open access časopisu
Keywords Rule of Law; European Court of Justice; Romania; Judicial Reforms
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Description The article analyses the European Court of Justice’s landmark judgement in AFJR concerning judicial reform in Romania. It argues that the judgment brings three new insights into how the Court approaches rule of law oversight in the Member States. First, by relying almost exclusively on the requirements of Article 19(1) TEU, instead of the more specific requirement stemming from the Cooperation and Verification Mechanism (CVM), the Court showed that it prefers to tackle rule of law problems in the Member States using a framework which is unified, universally applicable, and forward-looking, rather than one which is specific, tailored-made, and retrospective. Second, AFJR allows us to better understand the Court’s minimalist approach in some of the national rule of law cases. Specifically, it shows that (i) the Court’s silence on the limits of Article 19(1) TEU may not mean that the provision has no limits, but only that there has not yet been a suitable case for spelling out the limits, and that (ii) in cases such as AFJR, the Court’s deferential approach, leaving much of the work on the shoulders of national courts, might be a conscious and prudent choice. Finally, we argue that the Court’s analysis of the three Romanian judicial liability mechanisms not only clarifies the requirements which each of the three regimes must satisfy, but also brings to light a subsequent, more practical, risk relating to how and by whom the Court’s standards, which require quite complex, contextual assessment, should – or even could – be properly applied. Overall, the article argues that the commented judgment does not concern only, or not even mainly, Romania or Bulgaria, the only two EU Member States subject to the CVM. Its universalistic framework and its comprehensiveness ensure that in the time to come, the judgment will be an important reference for assessing judicial organization throughout the Union.
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